Default Bail Under BNSS Section 187: When Police Miss the Deadline

Default bail (also called statutory bail) is the right of an arrested person to be released on bail if the police do not complete the investigation and file a charge sheet within the time limit in section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The limit is 90 days where the offence is punishable with death, life imprisonment or imprisonment of ten years or more, and 60 days for other offences, counted from the date the magistrate first authorises custody. Once that period ends without a charge sheet, the accused must be released if he is prepared to furnish bail and does so. The right has to be claimed by an application before the charge sheet is filed.

Section 187 replaced section 167 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Most of the case law on default bail was decided under section 167(2), and the Supreme Court's reasoning on the indefeasible nature of the right continues to guide courts under the BNSS.

What section 187 says

When a person is arrested and the investigation cannot be completed within 24 hours, the police must produce the person before the nearest magistrate with the case diary entries. The magistrate can then authorise detention. The key parts of section 187 are these:

• Under section 187(2), the 15 days of custody that a magistrate can authorise at the start (in practice, police custody) may be given in the whole or in parts at any time during the first 40 days (for 60-day cases) or the first 60 days (for 90-day cases). This flexibility is new in the BNSS.
• Total detention during investigation cannot exceed 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more, and 60 days for any other offence (section 187(3)).
• On expiry of the 90 or 60 days, the accused "shall be released on bail if he is prepared to and does furnish bail". A person released this way is treated as released under the BNSS chapter on bail.
• Explanation I to section 187 makes clear that even after the period ends, the accused stays in custody so long as he does not furnish bail.

The old CrPC used the words "imprisonment for a term of not less than ten years" for the 90-day category, while section 187(3) of the BNSS says "ten years or more". If the offence you are dealing with has a maximum sentence of exactly ten years, ask a lawyer which period your court is applying, because the answer decides whether the right arises on day 61 or day 91.

Special laws use longer periods

Some laws change these limits. Two common examples:

• Unlawful Activities (Prevention) Act, 1967: section 43D(2) reads the 60 and 90 day periods as 90 days, and allows the court to extend the period up to 180 days on a report of the Public Prosecutor giving the progress of the investigation and specific reasons for continued detention.
• Narcotic Drugs and Psychotropic Substances Act, 1985: for offences under sections 19, 24 and 27A and offences involving commercial quantity, section 36A(4) reads 90 days as 180 days, and the Special Court can extend this up to one year on the Public Prosecutor's report.

If the accused is held under such a law, check whether an extension has been sought and granted before counting on the ordinary 60 or 90 days.

How the days are counted

The period runs from the date the magistrate first authorises remand, not from the date of arrest. In Enforcement Directorate v Kapil Wadhawan (2023), a three-judge bench of the Supreme Court settled a long-running dispute about the first day and held that the day of remand is included. The court held that where the charge sheet is filed on or after the 61st or 91st day, the accused is entitled to default bail, and that the right accrues the moment the 60 or 90 day period expires.

A worked example

Take a hypothetical case under an ordinary offence where the maximum sentence is seven years, so the 60-day period applies. The accused is arrested on 28 February and the magistrate first remands him on 1 March. Counting 1 March as day one, March gives 31 days and the 60th day falls on 29 April. If no charge sheet is on the court's record by the end of 29 April, the right accrues on 30 April, and the application should be filed that morning. If the offence carried life imprisonment, the same method would give 90 days, ending on 29 May.

Always count from the remand order itself rather than from memory, and re-check if the accused was first remanded by an Executive Magistrate, because section 187(6) says that period is also counted towards the total.

In Kapil Wadhawan the period expired at midnight, the accused filed default bail applications at 8:53 in the morning, and the agency filed its charge sheet at 11:15 the same morning. Because the applications came first, the accused were entitled to bail. The facts show how much a few hours can matter.

An indefeasible right, but only if you claim it

The Supreme Court has repeatedly called default bail an indefeasible right. In Uday Mohanlal Acharya v State of Maharashtra (2001), the majority held that once the period expires, the accused who files an application and offers to furnish bail has availed of the right, even if the court has not yet decided the application. In M. Ravindran v Intelligence Officer, Directorate of Revenue Intelligence (2020), a three-judge bench summed up the position:

The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

M. Ravindran v Intelligence Officer, DRI (2020), para 18.2

The same judgment also made the limit clear. Where the accused fails to apply when the right accrues, and a charge sheet, complaint or extension report is later filed, the right to default bail is extinguished. The accused can still apply for regular bail on merits, but the automatic quality of the right is gone.

What counts as a charge sheet

Accused persons sometimes argue that a charge sheet filed in time was not a real one. The Supreme Court has narrowed these arguments:

• Cognizance is not required. In Suresh Kumar Bhikamchand Jain v State of Maharashtra (2013), a charge sheet was filed in time but cognizance was not taken for want of sanction. The court held that section 167 is about completing the investigation in time, and default bail was refused.
• Further investigation does not make a charge sheet incomplete. In Central Bureau of Investigation v Kapil Wadhawan (2024), the court held that pendency of further investigation against other accused, or about documents not yet available, neither vitiates the charge sheet nor entitles the accused to default bail.

Arguments that the police filed a sham document only to defeat the right still come up, but they depend heavily on the facts and need careful drafting by a lawyer.

Conditions the court can and cannot impose

Default bail is granted because the investigation was not completed in time, not because the court has assessed the evidence. In Saravanan v State (2020), the Supreme Court set aside a condition requiring the accused to deposit Rs 8 lakh, holding that no condition of depositing the amount involved can be imposed while granting default bail, because that would frustrate the purpose of the provision.

Courts can still impose the usual conditions to secure attendance. In Ravindran itself, the Supreme Court directed the accused to furnish sureties, surrender his passport, report to the agency when required and not leave the city without permission. Expect a personal bond and one or more sureties, so line up a surety bond and a willing surety with identity and property or income documents in advance.

How to apply for default bail

1. Get the dates right. Find the date of the first remand order by the magistrate and work out the 60th or 90th day, counting the remand date as day one, based on the maximum punishment for the offences in the FIR.
2. Check the court record on the last day. Ask whether a charge sheet, complaint or extension report has been filed. Under special laws, check whether the period has been extended.
3. Draft the application. State the FIR details, the offences, the date of arrest and first remand, the date on which the period expired, that no charge sheet has been filed, and that the accused is prepared to furnish bail as directed. Attach copies of the remand orders.
4. File it at the earliest possible time after the period expires, before the magistrate or Special Court that is dealing with remand, and get the filing time recorded on the acknowledgment.
5. Ask the court to decide it promptly. Uday Mohanlal Acharya said the court must dispose of such an application forthwith once it is satisfied that the period has run and no charge sheet is on record.
6. Furnish the bail bond and sureties as directed. Release happens only on furnishing bail, so keep the surety and documents ready.

Families can help by collecting, well before the deadline, a copy of the FIR, the arrest memo, every remand order, any order extending time under a special law, the surety's identity and address proof, and proof of the surety's property or income if the court is likely to ask for it.

If default bail is not available

If the charge sheet was filed in time, or the right was not claimed before filing, the accused can still apply for regular bail on merits with a bail application. The court will then look at the nature of the offence, the evidence, the risk of absconding or tampering and similar factors. LegalFirms has an explainer on the different kinds of bail, and because the timing on default bail is so tight, many families choose to speak to a criminal defence lawyer before the deadline arrives. If the case itself appears to be without basis, our guide on quashing an FIR in the High Court explains that separate remedy.